Tyler Flood:
The following are DWI Questions and Answers:
1) What must be proved to find you guilty of DWI?
Answer:
a. Your identity,
b. You were operating,
c. A motor vehicle,
d. In a public place,
e. In Texas, while
f. Your Blood Alcohol Level was .08 or higher, by
g. The introduction of alcohol, a drug, or a combination thereof into the body
2) How do I avoid being arrested for DWI?
Answer: Do not give a breath sample. The officer will most
likely tell you that you will be arrested if you don't take the
breathalyzer, and that your license will be suspended. What
they don't tell you is that if you blow over .08 (the legal
limit) you will be arrested and your license will be suspended
anyway.
3) How do I keep my license from being automatically suspended?
Answer: In order to keep your license from being automatically
suspended, we will request an Administrative License Revocation (ALR)
hearing to contest DPS's contention that there was probable cause for
your arrest.
4) Does the ALR hearing effect my criminal court case for DWI?
Answer: In short, No. DPS will try to suspend your license
independent of anything that is happening with your case in
court. Additionally, upon a final conviction of DWI, the criminal
court judge can suspend your license for anywhere from 6 months to
one year depending on your age and the circumstances of your case,
prior convictions, etc.
5) Will I have to go to jail if this is my first DWI?
Answer: If you have a clean criminal record and there were no
serious injuries in your first misdemeanor DWI, you should not have to
worry about doing any additional jail time. In Harris County,
probation is an option as an alternative to jail time.
6) How does a DWI effect my criminal record, will I have a conviction if I receive probation?
Answer: For DWI's in Texas, even if you receive probation, you
will have a final conviction on your record. The law states that
on your second DWI, you must spend at least 30 days in jail if you are
convicted. This enhancement can sometimes be waived, however.
7) How much can I expect in fines if I receive probation?
Answer: A DWI 1st carries a maximum fine of $2,000 which can be
paid monthly as a part of probation. Additionally, as of Sept.
1st 2003, DPS will assess an additional penalty of a minimum of $1,000
per year for three years upon a final conviction for DWI.
8) Is a breath sample always correct?
Answer: Absolutely not. A breath sample from an Intoxilyzer
machine can be inaccurate. There are ways to attack the validity
of the breath test results.
9) What if the Arresting officer did not read me my rights until after I completed sobriety tests at the station?
Answer: This is a common question. Sobriety tests are
generally considered non-testimonial in nature and Miranda does not
apply to non-testimonial evidence.
10) What should I expect from a lawyer?
Answer:
a. Your lawyer should conduct a thorough investigation of the facts of your case,
b. He should be able to prepare and conduct a rigorous
cross examination of the State's witnesses. In most cases, this
is the most important part of the trial,
c. He should have a comprehensive understanding of
constitutional rights, how they may be violated and how to protect
those rights,
d. He should have experience in the type of case you are hiring him for.
11) What are the major areas of concern in a DWI case?
a. Whether the stop was constitutional,
b. Whether the administration of roadside tests was constitutional,
c. Whether there was Probable Cause for the arrest,
d. How Miranda will play a role in the case with statements and other evidence,
e. How the roadside tests were administered,
f. The administration of any Breath or Blood Samples given,
g. The constitutionality of the search and seizure.
Real Life Stories of People Who Beat Their DWI Case
JOE
Joe
got off work at 6:00 pm on Friday. He and his work buddy split a
6-pack of Busch tallboys and went to play dominoes. Joe drank
three of the tallboys and then left to go visit his mother.
From
8:30 to 11:00 pm he talked with his mom and did not drink any
alcohol. Joe had stopped drinking when he got to his mom's
house. Joe fell sleep on his mother's couch and then got up at
3:45 am to go home to get ready for work that day.
Joe
was pulled over at 4:00 am had the smell of alcohol on his breath and
reportedly failed all the sobriety test he was given, including the HGN (Horizontal Gaze Nystagmus) , Walk & Turn and the One Legged Stand .
Joe again performed those sobriety tests at the police station but this time on video. He also refused the breath test.
Joe
looked solid as a rock on the video. The officer administering
those tests even lost his balance demonstrating the One Legged Stand.
The state offered Joe an incredible plea bargain of no jail time, no probation, just paying a $100 fine.
Joe turned the offer down and went to trial where he was found to be NOT GUILTY.
How To Avoid DWI - 5 Important Tips
1)
Don't blow - you have the right to refuse taking a breath test.
Yes it's true, your license may be suspended longer than if you had
blown, but you want to beat the case, right? Instead, offer to
give a blood sample.
2) Don't do any sobriety tests at all
- at the scene where you are stopped or at the station when you are
arrested. You can refuse.
3) Don't lean against the car or anything else...every little
thing you do that shows intoxication will be used against you in Court.
4) Don't say anything - they will use your statements against you
in Court. Common mistakes are saying, "Officer, I couldn't even
do those tests if I were sober"..."I know I'm wasted."
5) Speak clearly and be polite .
Field Sobriety Testing
The
Standardized Field Sobriety Test (SFST) battery is composed of three
tests: Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT), and
One-Leg Stand (OLS). The tests were developed by the National Highway
Traffic Safety Administration (NHTSA) in the late 1970's. In 1981, law
enforcement officers began using NHTSA's Standardized Field Sobriety
Test (SFST) battery at roadside to help determine whether motorists who
are suspected of DWI have blood alcohol concentrations (BACs) greater
than 0.10 percent. Since 1981, however, many states including Texas
have implemented laws that define DWI at BACs below 0.10.
The
validity of SFST results is dependent upon officers following the
established, standardized procedures for test administration and
scoring. According to NHTSA when properly administered and scored,
under laboratory conditions, the accuracy of the SFSTs in correctly
identifying intoxicated drivers is as follows:
- HGN - 77%
- WAT - 68%
- OLS - 65%
This
means that even under laboratory conditions, the HGN was wrong 23% of
the time, the WAT 32% and the OLS 35% of the time. Additionally,
NHTSA's own research emphasizes that test results are valid only when
administered in strict compliance with NHTSA protocol. If anyone of the
standardized field sobriety elements is changed, the validity is
compromised. It is therefore imperative to have your attorney review
the manner in which the SFSTs was administered. Your lawyer may be able
to suppress the results of an improperly administered test.
HGN - Horizontal Gaze Nystagmus
"Nystagmus"
means an involuntary jerking of the eyes. HGN refers to an involuntary
jerking occurring as the eyes gaze toward the side. In addition to
being involuntary the person experiencing the nystagmus is unaware that
the jerking is happening. The theory behind the test is that nystagmus
becomes readily noticeable when a person is impaired.
In
administering the test the officer has the subject follow the motion of
a stimulus with the eyes only. The stimulus may be the tip of a pen or
penlight, an eraser on a pencil or a fingertip. As the eyes move from
side to side each eye is examined for three specific clues:
- Lack of Smooth Pursuit - does the eye move slowly or does it jerk noticeably?
- Distinct
Nystagmus at Maximum Deviation - when the eye moves as far to the side
as possible and is kept at that position for several seconds, does it
jerk distinctly?
- Onset of Nystagmus Prior to 45% - as the eye moves to the side, does it start to jerk prior to a 45% angle?
Officers
frequently fail to properly administer the HGN. It is crucially
important for your attorney to review the videotape, if available to
ascertain whether the test was properly administered or whether
suppression of the results is possible.
Walk and Turn
The
WAT is a divided attention test consisting of two stages: Instruction
Stage; and Walking Stage. In the instruction stage, the subject must
stand with their feet in heel-to-toe position, keep their arms at their
sides, and listen to instructions. The subject must maintain the
heel-to-toe position and may not begin walking until all instructions
are given. In the Walking Stage the subject takes nine heel-to-toe
steps, turns in a prescribed manner, and takes nine heel-to-toe steps
back, while counting out loud and watching their feet. Officers observe
the subject's performance for eight clues:
- can't balance during instructions
- starts too soon
- stops while walking
- doesn't touch heel to toe
- steps off line
- uses arms for balance
- loses balance on turn or turns incorrectly; and
- takes the wrong number of steps
A
subject who exhibits two or more clues will fail the test. Scoring is
entirely subjective and within the officer's discretion.
One Legged Stand
The
OLS is also divided into two stages. In the Instruction Stage, the
subject must stand with feet together, keep arms at side and listen to
instructions. In the Balance and Counting Stage, the subject must raise
the leg of his choice approximately 6 inches off the ground, toes
pointed out, keeping legs straight. While looking at the elevated foot,
count out load in the following manner: "one thousand and one", "one
thousand and two", etc, until told to stop. The officer will instruct
the subject to stop after 30 seconds. The subject is observed for the
following clues:
- sways while balancing
- uses arms to balance
- hops
- puts foot down
A subject who exhibits 2 or more clues, as determined by the officer, will fail the test.
Romberg
Person
is instructed to stand with feet together, head tipped back, eyes
closed, arms at side. Position is demonstrated. Observe
anterior-posterior sway, 30 sec. trial. This is not one of the
"Standardized" Field Sobriety Tests. Typically estimating 30
seconds within 5 seconds either way is considered good, anything
outside of a 5 second margin of error will be counted as a sign of
intoxication. The officer will also look for swaying during this
time.
Breath Test - Chemical Test
Under
Texas law an individual is legally intoxicated if his/her alcohol
concentration is .08 or greater. A person's alcohol concentration can
be determined by testing the blood, urine or breath. "Alcohol
concentration" means the number of grams of alcohol per:
(a) 210 liters of breath;
(b) 100 milliliters of blood; or
(c) 67 milliliters of urine.
Blood
testing is generally considered to be the most reliable and accurate,
while urine tests are regarded as the least precise. If you are
arrested for DWI in Texas you will most likely be asked to give a
sample of your breath. Breath testing is the most commonly utilized
method because it is the least expensive to administer. The scientific
community is sharply divided over the accuracy and reliability of
breath testing procedures. The police do not save the sample of breath
tested. Thus it is not available for re-testing by an independent
laboratory.
Time of Driving vs. Time of Test
An
essential element of the crime of DWI is that the person is intoxicated
at the time of driving. However, chemical tests only reflect a person's
alcohol concentration at the time of testing. A person's alcohol
concentration at the time of driving may have been higher, lower or the
same. In order to link the test result to alcohol concentration at the
time of driving the prosecution may attempt to present expert testimony
concerning alcohol concentration at the time of driving. The process
the expert uses to relate the test result back to the time of driving
is known as retrograde extrapolation. However, in order for the expert
to offer an opinion which will be admissible at trial, the court must
find that the expert's opinion will be reliable. Factors effecting
reliability include:
- the length of time between the offense and the test(s) administered;
- the number of tests given and the length of time between each test; and
- whether,
and if so, to what extent, any individual characteristics of the
defendant were known to the expert. These characteristics and behaviors
might include, but are not limited to,
- weight and gender
- typical drinking pattern
- tolerance for alcohol
- how much the person had to drink on the day or night in question,
- what the person drank,
- the duration of the drinking spree
- the time of the last drink, and
- how much and what the person had to eat either before, during, or after the drinking.
Intoxilyzer 5000 - Breath Testing Device
The
State of Texas uses the Intoxilyzer 5000 to determine a person's
breath-alcohol concentration. The Intoxilyzer's manufacturer claims the
device works on the principle of Infrared Spectrometry. A sample of the
subject's breath is collected in the device's sample chamber. At one
end of the chamber is a light bulb. At the other end is a light
detector. The machine measures the amount of light that passes through
the chamber when no alcohol is present. This is this compared with the
amount of light passing through the chamber after a sample of the
subject's breath is introduced. In theory, the alcohol in a breath
sample will absorb some of the light, thus the less light that passes
through a breath sample the higher the concentration of alcohol. The
Intoxilyzer has a computer chip which processes the results of the test
to arrive at a specific alcohol concentration. The calculations the
device performs are unknown as the manufacturer refuses to release the
computer code.
You may be interested to learn that
the Intoxilyzer's manufacturer does not warrant that it is fit to
accurately determine the alcohol concentration in human breath. In
addition, there is no way to check the accuracy of results obtained by
using this device because the State refuses to preserve breath
specimens for future testing.
Officer Decides Between Breath, Blood or Urine Test
Under
Texas law the officer has the right to determine which type of sample
to request. For example, if the officer requests a breath sample and
you will consent only to a blood test, your license is subject to
suspension as a refusal. However, if you submit to a chemical test you
have the right to have a physician, qualified technician, chemist, or
registered professional nurse take an additional sample of your blood
for analysis. Your request must be made within two hours of your arrest
and the police are not required to transport you for testing.
Penalties - ALR
Driving
While Intoxicated is a class B misdemeanor with a range of punishment
of 3 to 180 days in jail and a fine not to exceed $2,000.00. However,
Texas law increases punishment for persons with prior DWI convictions.
An individual who pleads "guilty" or "no contest" to a DWI charge may
not received deferred adjudication.
First Offense
In
most circumstances a person convicted of DWI for the first time will
not be required to spend time in jail but will, upon his timely
application, receive community supervision (probation). The maximum
term of probation is 2 years. As a condition of probation the person
will be ordered to pay a fine, report to a probation officer, perform
community service, abstain from the use of alcohol and attend an
alcohol education course. In addition, a person's driver's license may
be suspended for up to 1 year. However, if you receive community
supervision and take the court ordered alcohol education course you
will be able to keep your license.
Note: If an open container of alcohol is present, the minimum period of confinement is increased from 3 to 6 days
Second Offense
A
person convicted of a second DWI faces a minimum term of confinement of
30 days with a 180 day maximum along plus a fine not to exceed
$4,000,00. A person convicted of a second offense is eligible for
community supervision (probation), but will be required to serve a
minimum of three days in jail as a condition of community supervision.
Driver's license suspension is 180 days to 2 years.
Third Offense
A
third DWI conviction becomes a felony if, during the previous ten
years, the person has been convicted of DWI. A third DWI carries a term
of confinement of 2 to 10 years in prison. If community service is
granted a minimum of 10 days in jail will be required. The person's
driver's license will be suspended for up to 2 years.
DPS Surcharge on Driver's License
In
addition to criminal penalties, a person convicted of a first DWI will
be required to pay a surcharge of $1,000.00 per year for three years as
a condition to maintaining his license. The annual surcharge increases
to $1,500 per year for a second or subsequent conviction within a 36
month period. If the person is shown to have had an alcohol
concentration of .16 or greater, the surcharge is $2,000 per year for
three years. Failure to pay the surcharge or enter into an installment
payout agreement will result in suspension of the license until all
payments are made.
Administrative License Revocation
WARNING!
You have only 15 days from the date of arrest to request a hearing to
save your driver's license. If you failed or refused to take a
breath/blood test you driver's license is subject to automatic
suspension.